' SADIQ HUSSAIN BHATTI, J.---This first appeal was heard by a Division Bench comprising the then Hon'ble Chief Justice (Mr. Justice Mushir Alam) and myself and it was dismissed vide judgment dated 5th March, 2013. Through the listed application wider Order XLVII, Rule 1, C.P.C., the appellant seeks review of the said judgment. Since the other member of the Bench, my learned brother Mushir Alam, C.J. (as he then was), has been elevated to the apex Court, therefore, this review application has been placed before me for hearing.
2. Learned counsel for the applicant referred to various paragraphs of the impugned judgment and tried to point out that there are mistakes in the narration of facts of the case and law.
3. On the other hand, learned counsel for the respondents argued that the appeal was dismissed vide the impugned judgment on the ground of maintainability and while the learned counsel for the applicant is arguing his application for review as though he is arguing the main case but he has not uttered a single word whether the conclusion arrived at is wrong. They submitted that the present application is misconceived and incompetent as review is specifically barred under Banking Jurisdiction. It was also argued that since the judgment debtor had filed an application under section 12(2), C.P.C., which was dismissed by Banking court, and as such the review wlis not permitted against it, hence the present application is misconceived and liable to be dismissed.
4. It may be pointed out that the respondent No,1 filed Suit No,254 of 1992 before the Banking Court- II for Karachi and Larkana against the applicant. The suit was decreed and the respondent No,1 filed execution application. The Banking Court auctioned the property of the applicant. The applicant filed an application under section 47 read with Order XXI, Rules 54, 66, 89, 90 and 91 read with section 151, C.P.C. Objecting to the sale of plant and machinery worth approximately Rs,28 Million which was neither mortgaged nor hypothecated with the respondent No,l. According to the applicant, this application is still pending. The applicant moved an application under section 12(2), C.P.C. Which was dismissed. The auction purchaser moved an application under Order XXI, Rule 94, C.P.C. For issuance of sale certificate in favour of his nominee which was allowed vide order dated 5-3-2007 and the Nazir was directed to issue sale certificate in favour of the nominee of the auction Purchaser. The applicant moved an application under Order XLVII, Rule 1, C.P.C. For review of the order dated 5-3-2007. The applicant also moved an application under Order XXX1X, Rules 1 and 2, C.P.C. Before the Banking Court. Vide order dated 13-4-2010, according to the applicant, the application under Order XXXIX, Rules 1 and 2, C.P.C. Was dismissed but no order was passed on the application under Order XLVII, Rule 1, C.P.C. The applicant impugned the order dated 13-4-2010 by filing M.A. No, 13 of 2010 before this. Court which was dismissed vide order dated 1-6-2011 but with the observation that if any review is still pending before the Banking Court the same may be decided. After remand of the case the Banking Court vide order dated 24-9-2011 held that vide order dated 13-4-2010 that. Court had disposed of the pending application, hence the Court arrived at the conclusion that no review application was pending. This order was challenged by filing First Appeal No, 119 of 2011 which was dismissed vide the impugned order.
5. A perusal of the impugned order shows that the Banking Court, after remand of the case to the extent or pendency of any review application, arrived at the following conclusion:-- "That by Order dated 13-4-2010 of this Court had disposed of the pending application hence there is no pending application for review at this time hence I have arrived at the conclusion that no review application is pending. Ordered accordingly. With no order as to costs." (sic)
6. It would also be advantageous if reference is made to the order dated 13-4-2010, wherein the Banking Court held as under: "Considering that the sale certificate has been issued the matter has been finally decided, noapplication for review can be entertained as provided under section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which expressly bars filing of any review application, considering that the JDS/applicant has exhausted all forums available right up to the Supreme Court where his petition for leave to appeal was not allowed."
7. Before proceeding further, it may be pointed out that in para 3 of the application it has been stated as under:-- "This Hon. Court while recording the submission of the Advocate for the Appellant this Hon. Court in bottom lines at page 2 of the Judgment has only mentioned the contention of the Advocate for Appellant to the extend [extent] of "however, while auctioning the same the plant and machinery worth of millions of rupees was also auctioned", whereas the case of the appellant throughout before the Court was that "the Plant and Machinery were neither mortgaged nor hypothecated with the respondent the other portion of the contention has been escaped by this Hon. Court while recording reasons in the judgment of the above Appeal."
8. This is clearly misreading of para 3 of the judgment as the said para 3 clearly shows that the submission of the counsel for the appellant/applicant was correctly depicted in the Judgment in the following words:-- "He [counsel for the appellant] stated that,. Only property bearing Plot No,151, measuring 2778 sq.
Yards, situated in Industrial Block No,23 Sector 23, Korangi Industrial Area, Karachi was mortgaged, however, while auctioning the same the plant and machinery worth millions of rupees were also auctioned."
9. The word's "ONLY clearly shows that the contention of the counsel for the appellant is that only the said plot, and not the plant and machinery, was mortgaged, however, the counsel for the appellant/ applicant has tried to mislead the Court by ignoring the word "ONLY" and its import.
Thus, it is wrong to say that the other portion of the argument of the counsel for the appellant/applicant escaped the attention of this Court.
10. Similarly, in para 5 of the application it has been stated that the facts mentioned in para 11 of the judgment are also incorrect as M.A. 13 of 2010 was filed under Order XLIII, Rule 1(r) against the order passed on the application under Order XXXIX, Rules 1 and 2, C.P.C. This again is wrong as para 10 only depicts the controversy that though the case of the appellant/applicant was that review application was pending while the case of the respondents was that no review application was pending before the Banking Court. This is clearly shown in para 15 of the judgment dated 13-6-2011 (page 227 of the file) in M.A. No,13 of 2010. Therefore, the learned Division Bench directed that if any review is pending the same may be decided. This was also an attempt to create misunderstanding.
11. Despite arguing the application at considerably length the learned counsel was not able to show anything that the conclusion arrived at by the Court was wrong.
12. So far as the case reported as Khairpur Textile Mills Ltd. And others v. National Bank of Pakistan and another (2003 CLD 326) is concerned, it may be pointed out that the question before this court was not whether a review is maintainable or not but the question before the Division Bench was whether any review was pending or not. Therefore, it was an exercise in futility to refer to a case which even otherwise was not applicable as the question was already decided by the learned Division Bench while dismissing M.A. No,13 of 2010 wherein with reference to various cases decided by the superior Courts, it was held as under:-- "On the basis of the reading and examination of the above judgments and the relevant laws we are of the considered opinion that the bar provided under subsection (6) of section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, cannot be circumvented by filing revisions under section 115 or appeal under Order XLVII, Rule 10, C.P.C. Or under any of the provisions and such revision or appeal is not maintainable."
13. In view of the above finding of the Division Bench of this Court, there was no justification in referring to the case law cited by the counsel for the applicant.
14. The only factual mistake which did creep into the judgment was that no C.P.L.A. Was filed against the judgment dated 13-6-2011 passed by a Division Bench of this Court in M.A. No, 13 of 2010 but there is no doubt that the same attained finality after it was not challenged. Even otherwise, this will have no effect on the fate of the appeal as even then the same was not maintainable and was accordingly, dismissed.
15. In view of the above, I am of the opinion that the learned counsel has not been' able to show any material defect in the impugned judgment calling for interference as the fate of the appeal would remain the same, therefore, the instant application, subject to the above observation, is hereby dismissed.